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LOCGOV VII - DISCIPLINARY ACTION - LGC, Sec. 60-68, R.A. No. 6770 (1989 -…

- - - - Decision – Sec. 66
        
        Appeals – Sec. 67 -
        
        Jurisdiction of the Ombudsman - Ombudsman has concurrent jurisdiction with the Sanggunian Bayan over administrative cases against elective Barangay ofﬁcials occupying positions below salary grade 27
        
        Jurisdiction of the Courts (Sandiganbayan)
        
        Recall – LGC, Sec. 69-75
        
        Definition of Recall - A mode of removal of a public ofﬁcer by the people before the end of his term of ofﬁce.
        
        2 more items...
        
        Any of the Following - Cases involving violations of RA. 3019 and Chapter II, Section 2, Title VII of the RPC
        
        (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade 27 and higher. . .
        
        (2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989;
        
        (3) Members of the judiciary without prejudice to the provisions of the Constitution;
        
        (4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and
        
        (5) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989.
        
        Powers and Authorities of Ombudsman (6770, Sec. 15) - Investigate and prosecute on its own or on complaint by any person, any act or omission of any public ofﬁcer or employee, ofﬁce or agency, when such act or omission appears to be illegal, unjust, improper or inefﬁcient.t has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;
        
        Concurrent Jurisdiction of the Ombudsman -
        
        Administrative Cases - involving concurrent jurisdiction of two or more disciplining authorities, the body where the complaint is ﬁled ﬁrst and which opts to take cognizance of the case acquires jurisdiction to the exclusion of other tribunals (Ofﬁce of the Ombudsman v. Rodriguez)
        
        Order of FIling - If the case was ﬁled ﬁrst in the Ombudsman, and the Ombudsman opted to assume jurisdiction over the complaint, the Ombudsman’s exercise of jurisdiction is to the exclusion of the Sanggunian Bayan exercising concurrent jurisdiction (Alejandro v. Ofﬁce of the Ombudsman Fact-Finding and Intelligence Bureau)
        
        SG 27 Officials -
        
        Municipalities - Municipal mayor
        
        Cities - City Mayor; Vice-Mayor; and Sanggunian Panglungsod members (for highly-urbanized cities)
        
        Province - Governor; Vice-Governor; and Sanggunian Panlalawigan members. [Secs 443- 486, LGC]
        
        Determination of SG 27 - Reference should be made to RA 6758 and the Index of Occupational Services, Positions, Titles and Salary Grades.
        
        An ofﬁcial’s grade is not a matter of proof but a matter of law which the court must take judicial notice of (Llorente Jr v. Sandiganbayan)
        
        Primary Jurisdiction of the Ombudsman - Acts or omissions of a public ofﬁcer or employee in cases cognizable by the Sandiganbayan (i.e. salary grade of 27 or higher) [Sec 15(1), RA 6770]
        
        Concurrent Jurisdiction of the Ombudsman - Cases cognizable by regular courts and other investigative agencies of the government
        
        Forum Shopping - No forum shopping in administrative cases, where filed in separate bodies with concurrent jurisdiction.
        
        Just follow first to file rule
        
        Jurisdiction - over administrative disciplinary actions against elective local ofﬁcials is lodged in two authorities
        
        Disciplining Authority - The President of the Philippines, whether acting by himself or through the Executive Secretary
        
        Derived from the President’s power of supervision over local governments (Joson v. Executive Secretary)
        
        Investigating Authority - The Secretary of the Interior and Local Government, who may act by himself or constitute an Investigating Committee
        
        However, the disciplining authority may also constitute a special investigating committee (Joson v. Executive Secretary)
        
        Timeline of Appeal -
        
        Phrase final and Executory - simply means that the administrative appeal shall not prevent the enforcement of the Sanggunian decision. The decision is immediately executory but the respondent may appeal to the Ofﬁce of the President or the Sangguniang Panlalawigan, as the case may be (Don v. Lacsa)
        
        The decision is immediately executory but the respondent may nevertheless appeal the adverse decision to the Office of the President or to the Sangguniang Panlalawigan, as the case may be. (Mendoza v. Laxina
        
        Rationale - Law itself provides hierarchy of appeal. Thus, pointless for law to outline the hierarchy of appeal up to the office of the president, if they allow final and executory to stop any of the local officials subjected to a disciplinary action from appealing.
        
        Effects of Appeal - shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal [Administrative Order No 17]
        
        Effect of Motion for Reconsideration - does not stay the immediate implementation of the Ombudsman’s order considering that a decision of the Ombudsman in administrative cases shall be executed as a matter of course. No vested right is violated as the respondent is considered under preventive suspension and entitled to the salary and emoluments he did not receive in the event he wins his eventual appeal. (Villasenor v. Ombudsman)
        
        Authority to Stay Execution - Berces, Sr. v. Guingona, While the LGC provides that an appeal "shall not prevent a decision from becoming final and executory;, Although AO No. 18 (1987) authorizes the President to stay the execution of the appealed decision at any time during the pendency of the appeal.
        
        Construing the provisions together, There is nothing to infer that the reviewing officials are deprived of the authority to order a stay of the appealed order and it may be construed as giving discretion to the reviewing officials to stay the execution of the appealed decision.
        
        Sangguniang Panglungsod of component cities; and Sangguniang Bayan - Appeal to Sangguniang Panlalawigan.
        
        Sangguniang Panlalawigan; Sangguniang Panglungsod of HUCs/ICCs - Ofﬁce of the President
        
        Office of the President - Final and executory.
        
        Decisions of the Ombudsman -
        
        When Final, Executory and Unappealable - Where respondent is absolved of the charge and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than 1 month or a ﬁne equivalent to one month salary
        
        When Appealable - Any other cases may be appealed to the CA
        
        Suspension - The penalty of suspension shall not exceed the unexpired term of the respondent or a period of 6 months for every administrative offense
        
        Removal - An elective local ofﬁcial may be removed from ofﬁce by order of the proper court [Sec. 60, LGC].
        
        A suspension for multiple offenses does not amount to a removal if each suspension corresponding to each offense does not exceed 6 months (Salalima v. Guingona)
        
        Form and Notice of Decision -
        
        Period - Investigationshall be terminated within ninety (90) days from the start thereof.
        
        Within thirty (30) days after the end of the investigation, the Ofﬁce of the President or the sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and the reasons for such decision.
        
        Copies of said decision shall immediately be furnished the respondent and all interested parties.
        
        Effect of Removal - The penalty of removal from ofﬁce as a result of administrative investigation shall be considered a bar to the candidacy of the respondent for any elective position [Sec. 66(c), LGC].
        
        Removal by Ombudsman - The rule that court orders are required in case of dismissal must be read alongside the Ombudsman’s own authority to discipline local ofﬁcials, which is separate and independent from the procedure provided under the LGC.
        
        Under R.A. No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public ofﬁcial other than members of Congress and the Judiciary (COA, Regional Ofﬁce No 13 v. Hinampas)
      - W/N Entitled to salaries after preventive suspension? - Only if exonerated/reinstated.
      - Definition of Preventive Suspension - A disciplinary measure which is intended to enable the disciplinary authority to investigate charges against the respondent by preventing the latter from using his position or ofﬁce to inﬂuence witnesses, to intimidate them, or to tamper with the records which may be vital in the prosecution of the case against him.
        
        Nature of Suspension - A preventive suspension is merely a preliminary step in an administrative investigation, and can be decreed on an ofﬁcial under investigation after the charges are brought and even before the charges are heard (Castillo-Co v. Barbers)
        
        Modes of Instituting Preventive Suspension -
        
        Under the Local Government Code - The procedure is governed by Secs 62-68, LGC
        
        Under the Ombudsman Act - The procedure is governed by RA 6770.
        
        Suspension under the LGC -
        
        By Whom Issued -
        
        President - If local elective ofﬁcial of a province, highly urbanized city, or independent component city
        
        Governor - If local elective ofﬁcial of a component city or municipality
        
        Mayor - If local elective ofﬁcial of a barangay
        
        When Issued - Any time where:
        
        The issues are joined,
        
        When the evidence of the guilt is strong and
        
        Given the gravity of the offense, there is great probability that the continuance in ofﬁce of the respondent could inﬂuence the witnesses or threaten the safety/integrity of the records or evidence [Sec 63(b), LGC]
        
        Requisites for Issuance -
        
        There is reasonable ground to believe that the respondent has committed the act or acts complained of
        
        The evidence of culpability is strong
        
        The gravity of the offense so warrants
        
        The continuance in the ofﬁce of the respondent could inﬂuence the witnesses or pose a threat to the safety and integrity of the records and other evidence
        
        Length of Preventive Suspension (62-63) -
        
        Any single preventive suspension cannot exceed 60 days;
        
        Cannot be imposed within 90 days immediately prior to any local election; if imposed before said period but extends to such, automatically lifted upon start of the 90-day period;
        
        If there are several administrative cases against an elective ofﬁcial, he cannot be preventively suspended for more than 90 days within a single year on the same ground/s existing and known at the time of the ﬁrst suspension;
        
        Once lifted, ofﬁcial is deemed reinstated without prejudice to the continuance of the proceedings against him
        
        Effects of Suspension (64-65) -
        
        Salary -No salary paid during period of suspension,
        
        XCPN - But if subsequently exonerated and reinstated, he shall be paid full salary that accrued during such suspension;
        
        Right to Defend - Accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine witnesses, and require attendance of witnesses and production of evidence through compulsory process of subpoena or subpoena duces tecum
        
        Suspension under Ombudsman Act
        
        How Issued - The Ombudsman and its deputies, as protectors of the people, shall act promptly on complaints ﬁled in any form or manner against public ofﬁcials or employees of the Government [Sec 12, Art XI, 1987 Constitution]
        
        This has been interpreted to mean that even unveriﬁed and anonymous letters may be sufﬁcient to start an investigation. (Almonte v. Vasquez)
        
        The requirement is liberally applied because the framers understood the reluctance of people to challenge public ofﬁcials who wield disproportionate power and inﬂuence against them (Garcia v. Miro)
        
        Requisites for Issuance -
        
        The evidence of guilt is strong; and
        
        Any of the following are present:
        
        a. The charge against such ofﬁcer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty;
        
        b. The charges would warrant removal from the service; or
        
        c. The respondent's continued stay in ofﬁce may prejudice the case ﬁled against him.
        
        Length of Preventive Suspension -
        
        GR - Preventive suspension lasts until the case is terminated by the Ofﬁce of the Ombudsman but not more than six (6) months without pay
        
        XCPN - When the delay in the disposition of the case by the Ombudsman is due to the fault, negligence or petition of the respondent, the period of such delay shall not be counted in computing the period of suspension.
        
        Rationale of Shorter Period -
        
        The shorter period of suspension under the LGC is intended to limit the period of suspension that may be imposed by a mayor, governor or the President, who may be motivated by partisan political considerations.
        
        In contrast, the Ombudsman is not likely to be similarly motivated because it is a constitutional body (Garcia v. Mojica)
        
        Nature of Power - Sec 63 LGC does not apply to preventive suspension issued by the Ombudsman, a constitutionally created ofﬁce and independent from the Executive branch of government. The Ombudsman’s power of preventive suspension is governed by R.A. 6770 (Miranda v. Sandiganbayan)
        
        Exercise of Ombudsman's Powers - The Ombudsman is empowered to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.
        
        The SC will not ordinarily interfere with the Ombudsman’s exercise of his investigatory and prosecutory powers without good and compelling reasons to indicate otherwise.
      - Condonation Doctrine - Abandoned under Carpio-Morales v. CA
    - - Provincial Officials - A complaint against any elective ofﬁcial of a province, a highly urbanized city, an independent component city or component city shall be ﬁled before the Ofﬁce of the President;
      - Municipal Officials - A complaint against any elective ofﬁcial of a municipality shall be ﬁled before the sangguniang panlalawigan whose decision may be appealed to the Ofﬁce of the President; and
      - Barangay Officials - A complaint against any elective barangay ofﬁcial shall be ﬁled before the sangguniang panlungsod or sangguniang bayan concerned whose decision shall be ﬁnal and executory.